A Leadership Moment

by Bruce Judson on January 2nd, 2013

President Obama campaigned on the promise that in his second term he would bring leadership to our polarized nation.

The President’s first term was, in part, stymied by a polarized Congress. At the same time, many astute observers contended that the President lacked the grit to fight for the values he espoused and the policies he promised in his campaign.

In the moments before the Senate opens it’s new session on January 3, President Obama will have a once-in-two-years moment to show that he has every intention of taking a far tougher, far less conciliatory attitude with the new 113th Congress.

When the gavel drops on January 3 to end the 112th session of Congress in the Senate, Obama will have — as far as I understand existing precedent — a rare opportunity to make recess appointments. Right now, one analysis of the White House Web site shows 170 nominations pending before the Senate. Under the recess appointment power provided by the Constitution to the President he could, if he chose, install all of these individuals in office for the next two years.

There are a variety of interpretations of the reason for the recess appointment power of the President. My analysis is that the overarching purpose of the provision is to ensure that the govern can function by allowing the President to fill open positions where the Senate has failed to act.

In addition to ensuring that his Administration can function, and that much needed members of the Judiciary are added to the Bench, a sweeping set of appointments by the President would have extraordinary symbolic value.

According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made 32 recess appointments. In essence, Obama has used this power far less than his predecessors from both sides of the aisle. By demonstrating that he now intends to use the full powers of his Office, President Obama would send an important message to the Congress and citizenry. He would demonstrate the he intends to lead–with all of the powers at his disposal.

Teddy Roosevelt provides the historical precedent for such appointments. As noted by The Washington Post,

“At high noon on Dec. 7 1903,” Senate associate historian Betty K. Koed has written, the Senate president pro tem brought down the gavel to end one session of the Senate and then said “the Senate will now come to order.”

“In that moment between sessions,” Koed wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”

“There was but one fall of the gavel,” a newspaper reported, “but one stroke, but one sound.” Even senators in the chamber didn’t know there’d been a recess or, as Roosevelt most creatively put it, a “constructive recess.”

The Washington Postalso notes that at the time there was considerable controversy over TR’s actions, and the amibiguity remains to this day:

Senators of both parties were furious and launched an investigation into what, under the Constitution, constitutes a recess.

We’re told the answer remains most ambiguous to this day. The more recent consensus is that, to be in recess, the Senate is gone for more than three days. But that’s only based on a 1993 Justice Department analysis in a lawsuit — not a law or Supreme Court ruling.

TR’s appointments were never invalidated, and that is, in effect, a far more powerful historical precedent than any Justice Department Opinion.

Some of our most distinguished public servants initially assumed office through recess appointments. They include Supreme Court Justice Earl Warren, Justices Brennan and Potter Stewart (all of whom were installed through Eisenhower recess appointments).

In the diplomatic arena, Eisenhower appointed Charles W. Yost, as Amabassador to Syria through a recess appointment. Yost would later serve as US Ambassador to the United Nations. While President George H . W. Bush, appointed Laurence Eagleburger Secretary of State in a 1992 recess appointment. In 1995, President Bush similarly used his recess appointment power to name John Bolton U.S. Ambassador to the United Nations.

Moreover, the real and symbolic value of such a bold gesture is high. A central message of the now-popular movie Lincoln is that in turbulent times President’s realize notable achievements both by adhering to a clear vision and by using every power the Constitution bestows upon them.

A great deal has been written about the need for leadership in Washington. President Obama now has a rare chance to demonstrate to Congress and the nation that he intends to be a far stronger leader in pursuit of his goals–using all of the power at his disposal. Few leaders ever have such a chance to reboot the perceptions held by Congress or the people of how they approach their task. This opportunity will not come again. Let’s hope it is not lost.